Citation Nr: 0828365
Decision Date: 08/21/08 Archive Date: 09/02/08
DOCKET NO. 05-23 789 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUE
Entitlement to restoration of service connection for lower
back degenerative disc disease.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The veteran served on active duty from July 1977 to July
1980.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2004 rating decision issued by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Seattle, Washington. In this decision, the RO severed
service connection for lower back degenerative disc disease.
The veteran appeared at a Travel Board hearing in May 2008.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required.
REMAND
The veteran has asserted that service connection should be
restored for his lower back degenerative disc disease on the
basis that he first injured his back in service.
The post-service medical evidence of record consists of VA
outpatient and examination reports dated since May 2000.
During his May 2008 hearing, however, the veteran reported
post-service treatment for his low back disorder at several
non-VA hospitals in Illinois and in Tacoma, Washington
following service. He also made repeated references to
treatment from the American Lake VA facility and noted an
upcoming visit with a chiropractor. Given the veteran's
contentions of a low back disorder dating back to service,
records of his reported post-service treatment are relevant
to this appeal and must be obtained pursuant to 38 C.F.R.
§ 3.159(c)(1) (2007).
The Board also notes that the veteran was not provided a VA
notice letter directly addressing the claim on appeal until
March 2008, and the RO has not since readjudicated the
veteran's claim in a Supplemental Statement of the Case or
otherwise. The absence of post-notification readjudication
constitutes a procedural defect that must be corrected upon
remand. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir.
2007); 38 C.F.R. § 19.9 (2007).
Accordingly, the case is REMANDED for the following action:
1. A letter should be sent to the
veteran explaining, in terms of
38 U.S.C.A. §§ 5103 and 5103A, the need
for additional evidence regarding the
claim on appeal. This letter must inform
the veteran about the information and
evidence that is necessary to
substantiate the claim and provide
notification of both the type of evidence
that VA will seek to obtain and the type
of evidence that is expected to be
furnished by the veteran. In this
letter, the veteran should be
specifically notified that he should
provide signed release forms, with
complete address and date information,
regarding all treatment he has received
from non-VA providers subsequent to
service. This letter should specifically
reference the reported emergency room
treatment in Illinois and Tacoma, as well
as any treatment from a chiropractor.
2. After securing the necessary release
forms, all records of relevant medical
treatment which are not currently
associated with the veteran's claims file
should be requested. All records
obtained pursuant to this request must be
included in the veteran's claims file.
If the search for such records has
negative results, documentation to that
effect should be included in the claims
file.
3. After completion of the above
development, and after determining
whether additional development is needed
in light of any newly added medical
records, the veteran's appeal should be
readjudicated. If the determination
remains adverse to the veteran, he and
his representative should be furnished
with a Supplemental Statement of the Case
and given an opportunity to respond.
Then, if indicated, this case should be returned to the Board
for the purpose of appellate disposition. The veteran has
the right to submit additional evidence and argument on this
matter. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This appeal must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).